Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors.

examination was for short-listing the candidates and was in the __, nature of 'elimination test' has no doubt substance in it in view --....... of the fact that the records disclose that there were about 80

posts of Medical Technologies and a huge number of candidates, approximately 4,000 applied for appointment. The State authorities had, therefore, no other option but to 'screen' candidates by holding written examination. It was observed that no Recruitment Rules were framed in exercise of the power y under the proviso to Article 309 of the Constitution and hence no such action could be taken. In our opinion, however, even in absence of statutory provision, such an action can always be taken on the basis of administrative instructions - for the purpose of 'elimination' and 'short listing' of huge number of candidates provided the action is otherwise bona fide and reasonable. It has also come on record that the administrative y decision had been taken by the State to take 'elimination test' to 'short list' huge number of candidates. It is further clear that the plea to that effect was raised by the State in the first round of litigation before the first authority, viz. the Tribunal itself. But, in view of the fact that in that round of litigation, the Tribunal held the action of the State authorities to be wrong and the High Court upheld it and the State did r:iot challenge the order in this Court, in our opinion, the High Court in the second round, did not commit any error of law in directing the authorities to prepare merit list on the basis of marks obtained by the candidates in written examination as also in oral interview. It was not open to the State authorities to reiterate and re-agitate in the second ro!Jnd, the same ground, that written examination was in the nature of 'elimination test' and it was limited to 'short listing' of candidates and marks obtained by candidates at the written examination could not be considered for preparation of merit list. The said stage had already gone and the decision in the first round had attained finality so far as the nature of written examination was concerned. The Tribunal and the High Court were, therefore, right in holding in the second round that the merit list was required to be prepared on the basis of composite marks obtained by candidates at the written examination and oral interview both and not only on the basis of marks at the oral interview.

¶35The contention on behalf of the appellants that as per the law laid down by this Court in Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors., [1981] 1 sec 722 and other cases that there cannot be more than 15% marks at the oral interview also cannot be accepted at this stage. As already indicated earlier, such a direction was issued as early as in 2000. The appellants, who were applicants before the Tribunal and petitioners before the High Court accepted the said decision and did not challenge the legality thereof by approaching this Court. Even in the second round, the same view was taken both by the Tribunal and by the High Court. The decision of the High Court was not challenged immediately. On the contrary, by filing a Contempt Petition, implementation of the direction of the High Court was sought by the appellant. The said direction was, therefore, binding on all the parties including the appellants.

¶36Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the Employment Exchange, they were selected and appointed in 1998-99. The candidates who were unable to get themselves selected who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the Original Application, which was not done. In any case, some of them ought to have been arrayed as respondents in a 'representative capacity'. That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside .

....

¶37The Tribunal stated;

"In the case before us, the marks obtained in the written test were excluded from consideration which preparing the final list not in accordance with any policy which decision of the Government. Moreover, the weight of the decision of the Apex Court is on the side of consideration of the totality of the performance of the candidates in both oral _,~

and written test, when rules do not provide against it and appointment should be given from the merit list thus prepared in accordance with the rules including reservation rules. In our views same course should be

followed in the cases before us; In this connection, it should be mentioned that this finding will not affect the appointments given to medical technologists (Laboratory) already the appointments given as those person are not parties to the proceedings before this Tribunal. It would be most improper for us to pass any judgment against to them without giving them an opportunity of being heard. So those appointments will remain unaffected by this y Judgment".

'.

(emphasis supplied) 38. The learned counsel for the respondents, in this connection rightly placed reliance on a decision of this Court in Prabodh Verma and Ors. v. State of Uttar Pradesh & Ors., [1984] 4 sec 2s1.

¶39True it is that the High Court, in the first round, directed the Tribunal to reconsider the matter of 66 candidates who were selected and appointed observing that the Tribunal had not assigned any reason for granting protection. With respect, it was not factually correct. The Tribunal had recorded reasons, namely, that they had been selected and appointed, they were working since the date of their 1appointment; they were not joined as respondents and no opportunity of hearing was afforded to them and in their absence and without observing principles of natural justice and fair play, their appointment could not be set aside.

¶40Be that as it may, in the second round also, the Tribunal as well as the High Court prote~ted them.

¶41Dealing with the sele~ted candidates, the Tribunal stated;

·f'- "Taking an over-all v'ew of the matter as disclosed from material on record, we find that the selection process opted by the Respondent authorities was bonafide and in accordance with the law. Therefore, we approve the action taken by them in the matter. We hold th~t the entire selection process was not vitiated in law and hence there was no question of quashing the selection process and other action adopted by the respondents in the matter. There was again no question of cancellation of the appointments given by the State Respondent authorities to 190 candidates. They have served for about 3 years and have hence gained sufficient experience in the work of investigation entrusted to them. Again any other setting aside their appointments was bound to affect adversely the working of various medical Technologists in different Medical Units throughout the State of West Bengal. We also hold that fixation of qualifying marks in both written and oral test as 40% is quite lawful and valid in the facts and circumstances of the case.

In the aforesaid background and scenario, we direct D' that the appointees (in-service candidates) will continue to do work as Medical Technologists. We also hold that the panel of 240 candidates was quite lawful and valid. Accordingly, we direct the State respondent authorities to offer appointments to the successful candidates, who are not now waiting in the Panel (Namely from SI. No. 202-240) subject to availability of vacancies and also subject to medical examination and police verification. We also i issue directions to the Respondents concerned, to relax

the age illegible of the empanelled successful candidates (namely from SI. No. 202-240), if so required;"

¶42The High Court, in the writ petition also stated;

"It is further made clear that if those candidates who are already appointed do not find a place in the panel in that _, T case consequential orders may be made by the State

Government. But those who were in the panel if they can be accommodated by reason of existing vacancies in such cases persons who have already been appointed should not be disturbed. If is further made clear that appointments .A · must be made on the basis of the panel as directed

above.".

¶43Even in contempt proceedings, similar orders were passed.

¶44On December 21, 2004, the Court passed the following orders; y

"After considering the facts and circumstances of the case and also the affidavits filed by the State, it appears that in the panel which has been prepared, there are sixty-six persons who do not qualify on the basis of the norms fixed by this Court's order dated 11th August, 2003 and on the basis of which the panel has been prepared. Bl.it the fact remains that those sixty-six persons are now working. There were none vacancies which could not be filled up. It also appears from the affidavit of the State that those vacancies have become defunct. The Court is also not inclined to pass any order for removal/termination of services of those sixty-six persons who have been working for last three to four years and have become confirmed''.

(emphasis supplied) 45. Then while finally disposing of Contempt Petition, the r Court said;

"We, therefore, give liberty to accommodate those sixty six persons in the manner it thinks best and without disturbing their seniority or continuity of service."

¶46In fact, it was stated at the Bar that on behalf of the appellants a statement was m~de before the High Court that -r appointment of 66 employees may not be disturbed but similar relief could be granted and benefit should be extended to the candidates who had approached the Court. The Court, to that extent, accepted the submission and directed the authorities to consider the cases of those candidates who had obtained requisite 40% marks at written examination and oral test and who could be placed in the merit list along with or above 66 candidates. By taking such view, no illegality can be said to have been committed by the High Court and we see no infirmity in such a direction.

¶47In Munindra Kumar & Ors. v. Rajiv Govil & Ors., [1991) 3 sec 368, the selection comprised of written test, group discussion and oral interview. The relevant rule fixed 40 per cent of total marks for group discussion and oral interview (20 per cent each). Though this Court held fixation of marks as arbitrary being on higher side, it refused to set aside selection made on that basis since selection had already been made, persons were selected, appointed and were in service.

r 48. In Gujarat State Deputy Executive Engineers'

;..._

Association v. State of Gujarat & Ors., [1994] Supp 2 SCC 591, this Court recorded a finding that appointments given underthe 'wait list' was not in accordance with law. It, however, refused to set aside such appointments in view of length of service (five ye2rs and more).

¶49In Buddhi Nath Cahudhary & Ors. v. Akhil Kumar & Ors., [2001) 3 SCC 328, appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. "We have extended equitab~e considerations to such selected candidates who have worked on the posts for a long period", said the Court.

¶50In M.S. Mudhol (Dr.) & Anr. v. S.D. Halegkar & Ors., [1993] 3 sec 591, the petitioner sought a writ of quo warranto "'r' and prayed for removal of a principal of a school on the ground

that he did not possess the requisite qualification and was wrongly selected by the Selection Committee. Keeping in view the fact, however, that the incumbent was occupying the office of Principal since more than ten years, this Court refused to disturb him at that stage.

t 51. In our con.sidered opinion: the law laid down by this l Court in aforesaid and other cases applies to the present

. J situation also. We are of the considered view that it would be inequitable ifwe set aside appointments of candidates selected,· appointed and are working since 1998-99. We, . therefore, hold that the Tribunal and the High Court were right y in not setting aside their appointments.

¶52It is undisputed that by the time we are called upon to decide the matter, the selected and appointed candidates have completed ten years. They are tHus having rich experience in the field. There are several vacancies. The stand of the State . Government is equally fair and reasonable. It was stated that those candidates who had grievance against the selection and had not waived their right to get similar treatment and had approached the Tribunal, High <;ourt and this Court, may be granted similar relief. We are also of the view that such relief can be granted in favour of appellants who were agitated and had raised voice against the. selection of candidates before the Tribunal, before the High Court and before us.

¶53Those candidates wh.o had not approached the Tribunal, High Court or this Court have now filed Interim Applications in this Court The learned counsel appearing for those applicants submitted that they may also be granted similar benefits. It was urged that equals must be treated equally which is the fundamental right enshrined in Articles 14 and 16 of the Constitution. It was vehemently argued that it is settled law that fundamental rig~ts cannot be waived. Hence, eve·n if the applicants had not approached this Court earlier, they can come to this Court claiming similar re.lief by invoking Part Ill of the Constitution. y

¶54We are unable to uphold the contention. It is no doubt true that there can be no waiver :of fundamental right. But while exercising discretionary jurisdictjon under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors· and one of such co·nsiderations is delay and laches on the part of the applicant i.n approaching a writ-Court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is 'that the petitioner is guilty of delay and laches.

¶55If the petitioner wants to invoke jurisdiction of a writ-Court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime [vide State of M.P. & Anr. v. Bhailal Bhai, [1964] 6 SCR 261; Moon Mills v. Industrial Court, Bombay, AIR (1967) SC 1450 an~ Bhoop Singh v. Union of India & Ors., (1992] 2 SCR 969].

; . 56. This principle applies even in case of an infringement of fundamental right [vide Trilokchand Motichand v. H.B. Munshi, [1969] 1 SCC 11 O; Durga Prasad v. Chief Controller, [1969] 1 SCC 185 and Rabindranath Bose v. Union of India, f 19701 1 sec 84].

¶57There is no upper limit and there is no lower limit as to when a person can approach a Court. The question is one of discretion and has to be decided on the basis of facts before the Court depending on and vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.

¶58We are in respectful agreement with the following ...,,- observations of this Court in P.S. Sadasivaswamy v. State of

T.N., [1975J 1 sec 152;

"It is not that there is any period of limitation for the Courts .to exercise their powers under Article 226 nor is it that

there can never a be a case where the Courts cannot interfere .. iri matter after the passage of a certain length ·of time .. But It woulq be a sound and wise exercise of discretion for the Co1Jrts to refuse to exercise their extra-_o'rdinary powers· under Article 226 in the case of persons · who do not approach it expeditiousiy for relief and who · 'stand by and allow things to happen and then approach

the Court to put forward stale claims and try to unsettle . settled matters"

(emphasis supplied) .. 59. From the facts, it is clear that written examination for .. the selection of Medical Technologists was taken as early as

in_ August, 1995 and list of: more than 1,000 candidates was puplished in June, 1996. By now more than _a decade has passed. The applicants who had never challenged the selection before the. Tribunal, before the High Court and before us and have applied for the first time in the present proceedings which were instituted in 2005 by filing impleadment applications have 1-, thus accepted the position as prevailed in 1996. Qua them, therefore, the matter can be said to have been 'settled'. Initiation of proceedings at the instance of those candidates now witl 'unsettle the settled position'.·

¶60In our opinion, the learned counsel for the State is right r in contending that even if this Court holds that the appellants ··who have approached this Court are entitled to some relief, such

relief could be granted to those candidates who had grievance against the selection and who had challenged the action of the respondent authorities but it .could not be extended to the applicants who have approached this Court in the present proceedings.

¶61Though there is considerable force in the argument of y· the learned counsel for the State and contesting respondents th.at there is substantial delay on the part of the appellants in a pp.roaching this Court, In the light of factual scenario and the direction which we are inclined to issue, we have thought it fit not to dismiss Special Leave Petitions on t~e ground of delay but considering merits of the case, we are issuing necessary directions granting relief to the appellants. who were vigilant about their rights.

¶62Similarly, there is also substance in the contention of the learned counsel for the respondents that the appellants, by appearing in the wtitten examination and oral interview had taken a chance and having failed have approached the Tribunal. Again, a Special Leave Petition filed by some candidates has already been dismissed by this Court. But in the larger interest and keeping in view vacancies in the cadre, we have granted equitable relief in favour of eligible and qualified applicants .

. 63. In the result, the appeals are partly allowed. Service of 66 candidates who were selected and appointed in 1998-99, whose appointments were initially not challenged and thereafter who were protected by the Tribunal and by the High Court have not been disturbed. The appellants who are similarly situated to 66 respondents who are protected in the present proceedings will be treated at par with those respondents. And if on the basis of merit list prepared as per the order of the High Court, they are found eligible and qualified, the State Government will consider their cases, i.e. the cases of the appellants and will appoint them in accordance with law. Age bar, if any, will not come in the way of those candidates. The said benefit, however, is limited to those candidates who have challenge.d the selection by approaching the Tribunal, the High Court and this Court. Our directions will not apply to those candidates who have approached this Court for the first time by filing Interim Applications. Their applications, therefore, stand dismissed .

¶64On the facts and in the circumstances of the case, there shall be no order as to costs.